I Will, Will You?

Have you written your will yet? Have you ever thought of writing one? “No! I’m not going to die so soon”, “I’m still young”, “I am not rich, not having much assets and properties”, “My family members will automatically inherit the property”……I believe most of you will answer the same. Just like the previous me, before knowing the importance of writing a will.

Will writing is not for the old or the rich, but for every one of us. It’s never too soon; it can only be too late. Writing a will has nothing to do with death. It is all about planning the distribution of your assets, in the manner you wish, rather than letting the laws decide. Most importantly, it gives protection to your loved one when they are most vulnerable.

However, around 90% of Malaysians do not have a will and still think that will writing is not important. But, do you know there are countless family tragedies we saw on the media involved in inheritance lawsuits just because of intestacy. Thinking, discussing and planning post-death may feel uncomfortable, but we never know how much worse the situation would be if we died or become incapacitated - through illness, accident, old age or emergency - without sorting it. It might probably cause months or years of grief for our loved ones. So, don’t let all these happen to our loved one. A will can help.

Now, let’s go through some brief information about a will/testament which I have gotten from Lionsworld Services & Media Sdn Bhd. 

What is a will/testament?

Normally, public has a perception that a will is a spoken or written consent by a person who is under life threatening situation - which is merely the truth. A will is actually a legal declaration in written form that consists of the name of inheritors (beneficiaries) and the property arrangements of a person after he or she had passed on.

Reasons of most people not making a will:

-        Superstition and taboo

-        Feel that they have nothing substantial to leave post-death

-        Has little or no knowledge on will writing

-        Believe their estate will be transferred or inherit by their family automatically

The benefits of making a will:

-        You make known your wishes as to how your estate should be distributed so as to benefit your loved ones rather than letting the law to decide

-        Ensure your estate is properly arranged and distributed correctly, according to your wish.

-        Safeguard the future of your loved ones to avoid any financial hardship

-        Appointing an Executor through a will helps ease the administration of your estate upon your death.

-        With a will, you can also speed up the distribution process considerably.

-        The appointment of a trustworthy guardian through your will ensure your children’s welfare are in good hands.

-        Reduce the costs of administering your estate.

-        Express your wishes for your funeral arrangements.

What happen if you don’t have a will?

Without a will, the economic fate of your family and loved ones is all depend on the law and government, according to the Distribution Act 1958

Family Status	Property Ownership
Surviving spouse (without parents/minor)	All passed on to spouse
Surviving spouse and parents (without minor)	Spouse: ½ Parents: ½
Surviving minor (without spouse and parents)	All passed on to minor
Surviving parents (without spouse/minor)	All passed on to parents
Surviving spouse and minor (without parents)	Spouse: 1/3  Minor: 2/3
Surviving minor and parents (without spouse)	Minor: 2/3  Parents: 1/3
Surviving spouse, parents and minor	Spouse: ¼ Parents: ¼ Minor: ½

The following person(s) in accordance to priority are entitled to inherit when an intestate dies without leaving behind a surviving spouse, parent or minor:-

1. Siblings

2. Grandparents

3. Uncles and aunts

4. Great-grandparents

5. Great uncles and aunts

6. GOVERNMENT

If there is no will, the family of the deceased has to decide and appoint the Administrator and apply for Letter of Administrator (LA) from the court, which the procedures are exceptionally complex.

Firstly, they would be arguing over who would be the Administrator to administer the estate of the deceased.

Secondly, two guarantors (sureties) are required by the High Court by way of bond equivalent to the gross value of the deceased’s assets, unless it is exempted by the High Court.

Thirdly, time consuming due to delay in estate administration process..

If you wish to donate a specific amount of your estate to charity or friends, then a will is essential. Even if you are single without any surviving kin, it is also important to make a will as the government will inherit all your estates if you were to die intestate.

Matters that you need to consider if you decide to write a will:

First of all, you (the testator) must appoint at least one executor. You can also appoint up to four executors. However, it is always advisable to appoint more than one executor because if your primary executor unable or unwilling to serve, your alternate executor can stand-in. You can also consider appointing a trustee company as your executor.

Secondly, you need to name a guardian for your minor children. The surviving spouse will usually be the guardian. Otherwise, a guardian is needed to take care of the welfare of the minor children should there be failing the survival of your spouse as natural guardian.

Thirdly, who will be the beneficiaries? If you decide to bequeath some of the legacy to a beneficiary, it is always best to have subsequent beneficiary of a particular asset should an earlier mentioned beneficiary pre-deceased the testator. Beneficiaries may also include charities and other NGOs.

How to start making a will?

A will always involves:

a.      Testator

b.     Executor

c.      Beneficiary

d.     Witness

A person who makes a will is known as Testator. Executor is referred as the person appointed to administer and exercise the estate of a person who has died leaving a will. Beneficiaries are those who benefit from the will. Witness is a person who participates in the validation of a will document. The witness basically ensures that the testator has the intention and sound mind to form a legal will.

A legal will must be prescribed in accordance to the law

·       A will must be in written form, unless it is a privileged will. For example, soldier, navy, and sailors are all entitled for privileged will.

·       Testator must be above the age of 18 (in Peninsular of Malaysia and Sarawak) or 21 (in Sabah). In the process of making a will, it is important for the testator to stay awake and have sound mind. A legal will should also be signed and dated at the bottom of each page.

·       Under the Law, two witnesses are required to be present when the testator signs his/her Will, where the witnesses are not any of the beneficiaries or spouse of the beneficiaries.

·       However, the executor is eligible to be a witness, if he/she is not any of the beneficiaries or spouse of the beneficiaries.

·       Both the witnesses and the testator must sign the will at the same time, with the presence of each other. However under the will Act, a will need not be stamped.

FAQ on Will

1.     Why should I bother to make a will if I don’t have much to leave anyone?

Yes, you should because will writing is a process of liquidating, in which turning your fixed assets into liquid assets, namely into cash. Without a will and having no one to apply Letter of Administration (LA) to administer your estate, all your unclaimed money will belong to the government.

2.     In what situation do we apply for a Grant of Probate (GP) or Letter of Administration (LA)?

When there is a Will left behind by the deceased, the immediate family will apply for a GP. However, when he/she dies without a Will, the family member has to apply for a LA, where the procedures are exceptionally complex and time consuming as compared to GP.

3.     What happen to the estate of a person if he/she dies intestate?

His/her estate will be frozen. The Law requires Grant of Probate (GP) or Letter of Administration (LA) to unlock his/her frozen estate.

4.     What language should your will be written?

A will can be written in any language. However, it is always advisable to write in English or Bahasa Malaysia as a translation certified by a court interpreter/ a translation verified by the affidavit of a person qualified to translate must be annexed to the application for Grant of Probate.

5.     What are the documents I need to prepare if I decide to write a will?

Identity card (IC) of the testator (original and photocopy), IC number or birth certificate number of your intended beneficiaries.

6.     Is there anything that I cannot leave in my will?

Benefits under any insurance policy will be paid to the persons nominated by you under the policy. Your will cannot override nominations under the insurance policy. Payments from your Employees Provident Fund (EPF) will also be made in accordance with your nominations registered with EPF. However in circumstances where EPF has no record of your nominations, your EPF contributions will be paid in accordance with your will.

7.     How many witnesses do I need to have when signing my Will?

Under the Law, two witnesses are required to be present and participate in the validation of your will as to ensure you have the intention and sound mind to form a legal will. However, the witnesses cannot be any of the beneficiaries or spouse of the beneficiaries. You can also choose your lawyers or consultants to be your witnesses.

8.     Where should I keep my will?

You can legally keep your will wherever you like. However, it is wise to think carefully about where your will is kept. When you passed away, your executor will need access to the will as soon as possible, so he or she should know beforehand where it is being kept. Hence, it is advisable to keep your will in safe, but not so easy access place such as a locked drawer. A missing will is similar to not having a will. If you keep your will with your solicitor/lawyer, then you have to inform your executor the name and address of your solicitor/lawyer.

9.     Can I amend/rewrite my will?

Certainly, a will only takes effect upon your death. However, your latest will revokes, annuls and invalidates all wills and codicils previously made by you either jointly or severally.

10.  When do I need to rewrite my will?

Consult your Professional Will Writer should any of the following events occur:

·       Changes of an intended beneficiary

·       You remarry, separate or divorce your spouse

·       The death of an intended executor or change of executor

·       There is substantial change in your financial situation

11.  I have written a few wills years ago which I have lost. Recently, I have written another one. If any of my old wills are found after I passed away, which is the valid will?

The latest one.

12.  I will be getting married in a few months time. I understand that if I write my will now, my marriage will revoke it? What shall I do at the meantime?

You can state clearly in your will that your marriage shall not revoke your will. Of course, the name of the person you are getting married must be stated.

13.  Will divorce void my will?

Unlike marriage, a divorce does not render a will null and void. If you have divorced, you should consider rewriting your will.

14. I am going to inherit some assets from my father when he passes on in the future. Can I specify them in my will even though I do not own the assets at the point when I write my will?

Yes, you can. This is because a will only takes effect upon death. As such, even though the assets do not belong to you at the time of writing your will, they may belong to you at the time of your death, in which case you can pass them on to your beneficiaries.

15.  Can I include my joint names assets to my beneficiaries?

Yes, you can. The assets will be held jointly between your beneficiary and your joint assets holder should you pass on one day. To avoid complication, it is advisable to will it to the joint holder only.

16.  At what age can my children inherit my property?

A person is legally capable of holding property upon attaining the age of 18. However, you can mention in your will if you wish them to inherit at only certain age.

17.  I want to give everything I own to all my children in equal shares but I plan to have one or two more children in the near future. Does it mean I have to rewrite my will every time I have a new child?

No. If you intend for them to benefit equally, just use the term ‘children’ which can include future children.

18.  Do I still have control over the assets that I have willed away in my will?

Certainly, a will only takes effect upon your death.

19.  Can I donate a specific amount to charity?

Yes, you can mention the specific amount for donation. However, in your will, you need to name the charity that you want to benefit.

20.  If I write my will today and die tomorrow, is my will still valid and effective?

Yes, it is. Your will is valid and effective immediately right after you and your witnesses signed on it.

Hopefully by now you all have better idea on will writing and understand the importance of writing a will. As what I mention over and over again, with proper arrangements made according to our will, not only we could protect our loved one, but also enjoy peace of mind and avoid any unnecessary family dispute.

If you all have made up your mind to write a will, I highly recommend Lionsworld Services & Media Sdn Bhd as their in-house solicitors are Expert, Trustworthy and Experienced, where I’m sure all your legal difficulties will be countered effortlessly. They are really patient and friendly, just to ensure my wishes are well communicated and my will is ‘tailored made’ to suit my needs.

Most importantly, Lionsworld Services & Media Sdn Bhd offers the most affordable will writing rate in town! Not only that, they also provide will custody service FREE, where they safe keep our wills at no charge at all.

So why wait? Plan ahead, write your will today, and you could enjoy peace of mind right away.